United States District Court, S.D. California
ROBERT STEVENS and STEVEN VANDEL, individually and on behalf of all others similarly situated, Plaintiffs,
v.
CORELOGIC, INC., a Delaware corporation, Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
HON.
CYNTHIA BASHANT UNITED STATE DISTRICT JUDGE
Plaintiff
real estate photographers bring this action against Defendant
CoreLogic, Inc. alleging violation of the Digital Millennium
Copyright Act, 17 U.S.C. § 1202. (ECF No. 34.) CoreLogic
now moves for summary judgment. (ECF No. 153.) Plaintiffs
oppose. (ECF No. 168.) The Court held a hearing on the motion
on June 8, 2016. After a review of the parties’
briefing papers and the arguments presented at the hearing,
the Court GRANTS CoreLogic’s motion for summary
judgment.
I.
STATEMENT OF FACTS
Defendant
CoreLogic develops and provides software to Multiple Listing
Services (MLSs). (Joint Statement of Undisputed Facts, ECF
No. 188 (“JSUF”) ¶1.) Real estate agents
join MLSs and use CoreLogic’s software platform to
upload their real estate listings, including property
descriptions and photographs. (JSUF ¶3.) The named
Plaintiffs are professional photographers who took
photographs of houses for sale and licensed the photographs
to real estate agents to upload to an MLS. (JSUF
¶¶12-14.) Plaintiffs provided the photographs to
the agents pursuant to a license from Plaintiffs to the
agent, but retained the right as copyright holder over the
photographs. (JSUF ¶¶47-48.)
Generally,
the named Plaintiffs do not upload the photographs to an MLS
themselves. Instead, they give the photographs to real estate
agents who do so. (JSUF ¶¶24-25, 36-37.) Real
estate photographers, including both named Plaintiffs,
understood that when they provided photographs to real estate
agents, the real estate agent would then upload the
photographs to MLSs. (JSUF ¶38.)
MLSs
generally require representations by the real estate agent
that he or she has procured the rights to reproduce or
display the photographs from the copyright holder. (JSUF
¶¶15-17.) CoreLogic similarly has written
agreements with its MLS customers that state:
MLS Data is proprietary information owned by Customer and . .
. [CoreLogic] claims neither rights regarding nor title to
MLS Data provided by Customer and/or End Users. It is
understood, however, that . . . [CoreLogic] shall have the
right to use, copy, arrange, compile and display MLS Data as
[i]t deems necessary to meet its obligations under this
Agreement…
(JSUF ¶19.) Some photographers embed copyright
management information (“CMI”) in metadata
attached to their photographs. Metadata is embedded in an
image file and can include the artist or copyright
“tags.” (JSUF ¶¶ 31, 35.) Some digital
cameras can be used to automatically create Exchangeable
Image File Format (“EXIF”) metadata.
Alternatively, photographers can add metadata with certain
photo editing software that provides for IPTC and IPTC
Extension metadata fields. (Dec. of Steven Vandel, ECF No.
175-25, ¶7.)
Not all
cameras are configured to include metadata, and not all
photographs produced by the named Plaintiffs had CMI in its
metadata. (Dep. of Plaintiff Vandell, attached as Exh. A to
Declaration of Michael A. Feldman “Feldman Decl.”
ECF No. 153-3, pg. 37; Dep. of Plaintiff Stevens, attached as
Exh. C to Feldman Decl., ECF No. 153-5, pgs. 6-8.) The
metadata is not visible in the image itself but can be
accessed and viewed using computer programs that are capable
of displaying the metadata. (Expert Report of Jeff Sedlik,
Feldman Decl. Exh. L, ECF No. 153-14; Expert Report of Gerald
Bybee, ECF No. 153-24 ¶33.)
There
are many points throughout the file handling process when
metadata can be altered or completely deleted unintentionally
from a photograph. (Expert Report of Gerald Bybee, ECF No.
153-24, ¶22.) Images uploaded to CoreLogic’s MLS
platforms may be manipulated before or after uploading.
Manipulations may include resizing, rotating, cropping and
adjusting resolution of the image so it can be used in a
preconfigured display layout on the web page. (Id.
¶38.) All of these manipulations could result in
inadvertent removal of the embedded metadata. (Id.
¶36.) Embedded metadata can also be removed
inadvertently by email programs, opening an image on an
iPhone using iOS Safari, or pasting the image in some
versions of MS Word.[1](Id. ¶40.)
Furthermore,
most commonly-used image-processing libraries, including the
StockImageDepot.com web site used by named Plaintiff Stevens,
do not retain metadata when the image file is
resized.[2] (Decl. of Mark Seiden, ECF No. 153-26,
¶12c-d.)
CoreLogic’s
software copies any visible watermarks that appear on these
real estate photographs and show the photographer’s
name. (JSUF ¶34.) However, prior to late 2014/early
2015, CoreLogic’s platforms removed all EXIF metadata
from the photographs uploaded to the MLS using CoreLogic
software. (Expert Decl. of Chuck Hedrick, Feldman Decl. Exh.
P, ECF No. 153-18 ¶¶15-23.) In late 2014/early
2015, CoreLogic rewrote the code so that EXIF metadata was
preserved during download.[3](Id.)
As
explained by expert Seiden, when building software, builders
usually use existing sets of pre-built functionality-known as
“libraries.” (Decl. of Mark Seiden, ECF No.
153-26 ¶¶31-32.) Most of these libraries do not
retain EXIF metadata by default when downsampling an image.
(Id. ¶35.)
On
February 28, 2016, a real estate agent, who wishes to remain
anonymous, used editing software to add metadata (not CMI,
just a test run) in the IPTC and IPTC Extension windows to a
real estate photograph using Adobe Bridge. (Decl. of Jane
Doe, ECF No. 175-21. ¶6.) After uploading the photograph
to the MLS (using CoreLogic’s software), she saved the
photograph to her computer. She then reopened the file using
Adobe Photoshop and found that most of the test information
in the metadata had been removed. (Id. at ¶7.)
Plaintiffs
provide no evidence that the absence of metadata led to
actual copyright infringement, nor have the named Plaintiffs
ever used metadata to track down copyright infringers.
However, both named Plaintiffs state that when identifying
metadata is removed or altered, it becomes more difficult to
identify a real estate photograph as theirs. (Stevens Decl.,
ECF No. 175-30 ¶22; Vandel Decl., ECF No. 175-25
¶24.)
In
2010, CoreLogic launched its Partner InfoNet Program, a
special program for sharing revenue with MLSs. (JSUF
¶42.) Through the Program, an MLS licenses its listing
data (including, for some MLSs, photographs uploaded to MLSs)
for use in a variety of new risk management products for
mortgage lenders, services and capital markets. (JSUF
¶42.) The Partner InfoNet agreement states:
[MLS] warrants to CoreLogic that it owns or has valid license
to permit use of the MLS data as described in this Agreement
and that to the best of…[MLS’s] actual
knowledge, the MLS Data will not violate the intellectual
property rights of a third party.
(JSUF
¶43.) CoreLogic requested and received an indemnity from
the MLS with respect to the Partner InfoNet Program. (JSUF
¶46.)
Neither
Stevens nor Vandel ever gave CoreLogic permission to use his
photographs on any Partner InfoNet products, including Real
Quest or Real Quest Pro. (Decl. of Robert Stevens, ECF No.
175-30 ¶19; Decl. of Steven Vandel, ECF No. 175-25
¶22.) Nonetheless, twenty-four of Vandel’s
photographs were used by Real Quest Pro and at least one of
Stevens’ photographs was used ...